A significant chapter has closed in the ongoing smartphone patent war between Apple and Samsung. A case that Samsung opened at the International Trade Commission (ITC) in 2011 concluded on Tuesday, with the ITC determining that a variety of older Apple products infringe the claims of a Samsung patent, US Patent No 7,706,348. If the decision stands, a "limited exclusion order" would go into effect that would ban the AT&T models of the iPhone 4, the iPhone 3GS, iPhone 3, iPad 3G, and iPad 2 3G.

These are mostly older models that aren't a big profit driver for Apple at this point, but they do still sell. You can presently buy an unlocked iPhone 4 for $450 from Apple or get one for free if you sign an AT&T service contract at the same time. There's also a vigorous resale market for old Apple equipment, and it isn't clear how an import ban might affect that.

The patent relates to encoding and decoding information on a CDMA cell phone network and is part of a group of "standards-based" patents that Samsung used to counter-attack Apple after Apple accused Samsung's Android-based phones of being a rip-off of Apple's technology and designs.

This ITC case has become a significant element of the overall patent discussion, mainly because Samsung was using standards-based patents to go after Apple products. That has become a subject of controversy in other cases as well, including a recently resolved battle between Microsoft and Google-owned Motorola over what standards-based patents are worth.

The commission asked for public comment on that issue and received comments not just from Apple and Samsung but from Cisco, Hewlett-Packard, Micron, and other industry groups like the Business Software Alliance and the Association for Competitive Technology.

Apple and Samsung have been waging a worldwide patent battle for a few years now, which temporarily culminated in last summer's blockbuster jury trial in San Jose. That trial resulted in Apple initially winning a $1.05 billion verdict, although part of the case is now scheduled to be re-tried. There's no reason to believe today's ITC decision will end that, even if Apple products ultimately do get banned.

"We are disappointed that the commission has overturned an earlier ruling and we plan to appeal," Apple spokeswoman Kristin Huguet told Reuters, and other news outlets. "Today's decision has no impact on the availability of Apple products in the United States."

The decision can only be appealed to the US Court of Appeals for the Federal Circuit, the nation's top patent court. Theoretically, the President can also block an ITC-ordered import ban, but that hasn't happened since the 1980s.

Coincidentally, this decision comes the same day that the Obama Administration issued a patent report calling for reforms that would curb patent trolls. While most of the suggested reforms in that report are specifically aimed at not affecting dueling corporations, some of them do suggest that tighter limits could be placed on ITC import bans in the future.

One commissioner dissented from the ruling today on "public interest" grounds.

Samsung used three other patents in this ITC investigation that fell entirely flat. Two of those patents were found invalid and a third was found valid but not infringed. Additionally, the ITC found that Samsung hadn't proved that a "domestic industry" even exists with regard to those patents. (In ITC proceedings, a patent-holder has to prove that someone in the US is actually using the patented technology in order to win a case; that requirement does not exist in federal court cases.)

Apple has been one of the nation's most aggressive patent enforcers in recent years, and it came out on top after its lengthy court battle with Samsung, even though it didn't get everything it wanted. If this decision stands, it could push the companies toward a settlement, as Apple top brass realizes that even if the company has a big win in San Jose, it's sure to see setbacks as well in a legal battle this broad.

117 Reader Comments

Ok, maybe I am a bit confused. The patent in question explicitly mentions CDMA. The iPhone 3G and 3GS are both GSM only? The iPhone 4 was the first one to come with CDMA network compatibility with Verizon.

Why are these older phones affected at all?

EDIT: Oh, and this patent really sounds like it should fall under FRAND, but maybe it doesn't. I have not dug into it.

I've read on other sites that the ban doesn't go into effect for 60 days, or longer depending on appeals. The only products on that list that Apple still sells are the iPhone 4, which they likely plan to stop selling in September or whenever they launch their next iPhone, and the iPad 2, which likewise is probably not going to be sold past this year. So at worst this stops Apple from selling these two low volume products a couple months early.

Tim Cook recently complained at D that it takes so long to get an injunction that some companies can get around them just by release new products at a rapid rate and discontinuing old ones. This time, it looks like Apple will be the beneficiary of that.

The patent wars are bullshit anyway. How about let's just see the best products win in the marketplace, huh? With appropriate interoperabilty controls, of course.

I know, it's quite a concept which none of the big players in the tech industry seem to be able to grasp. Then again, until consumers start punishing companies for being dicks, or we get the government to enact some legal reform (neither of which will probably happen in our lifetimes), nothing is going to change.

Ok, maybe I am a bit confused. The patent in question explicitly mentions CDMA. The iPhone 3G and 3GS are both GSM only? The iPhone 4 was the first one to come with CDMA network compatibility with Verizon.

Why are these older phones affected at all?

EDIT: Oh, and this patent really sounds like it should fall under FRAND, but maybe it doesn't. I have not dug into it.

The ITC said

"The Commission has determined that the public interest factors enumerated in section 337(d)(1) and (f)(1) do not preclude issuance of the limited exclusion order and cease and desist order. The Commission has determined that Samsung’s FRAND declarations do not preclude that remedy. "

This article says only the iphone4 and lower, but according to the ITC doc, *any* device that infringes on the patent is banned.

"The Commission has determined that the appropriate remedy is a limited exclusion order and a cease and desist order prohibiting Apple from importing into the United States or selling or distributing within the United States wireless communication devices, portable music and data processing devices, and tablet computers that infringe claims 75-76 and 82-84 of the ’348 patent."

Think about it - when HTC had their ban from the ITC thanks to apple, their One X was delayed to check for infringement as well.

If the patent only applies to CDMA, then AT&T should still be able to sell the iPhone 4 as they run a GSM based network. So Verizon, Sprint, Cricket, and any of the other CDMA carriers would be affected by an import ban. That is unless this patent bleeds over in to GSM network standards & protocols. At this point in time, AT&T is just trying to clear out the rest of its inventory to make room for the 4S, 5, and what's coming out next. Soon the 4S will drop to $.99 and the 5 to $99.99 unless something drastic changes, like AT&T scrubbing their subsidies pricing scheme.

If the patent only applies to CDMA, then AT&T should still be able to sell the iPhone 4 as they run a GSM based network. So Verizon, Sprint, Cricket, and any of the other CDMA carriers would be affected by an import ban. That is unless this patent bleeds over in to GSM network standards & protocols. At this point in time, AT&T is just trying to clear out the rest of its inventory to make room for the 4S, 5, and what's coming out next. Soon the 4S will drop to $.99 and the 5 to $99.99 unless something drastic changes, like AT&T scrubbing their subsidies pricing scheme.

"CDMA" in this instance could well refer to all UMTS 3G radios instead of just the CDMA/CDMA2000 interface used by Verizon and Sprint in the U.S.

Unlike GSM, which was time-division multiplexed (TDMA), UMTS has been code-division multiplexed from the get-go; the current HSPA and HSPA+ schemes are usually referred to as wideband CDMA (W-CDMA).

As an aside, LTE is unaffected by any of this as it is based on a couple of frequency-division multiplexing (FDMA) schemes

Patent Roulette: Where you sue a company in as many ways as you can, and eventually one judge might agree to something. Thankfully, no matter what rulings there are anywhere else in the world or even the same country, that one judges ban or jury's verydict still pays for all!

The entire idea of a court system handling patents is archaic, they're not set up do so, in general have no knowledge of the subject, and seem to have no obligation to follow any other courts ruling. There's a thousand differing rulings, and none of them ever seem to have an impact on the other. Didn't get what you wanted in the US court system? Try again until you do! Might as well try to the get a ban from the ITC as well, either one works. Their rulings disagree? Doesn't matter one whit to you!

The only logical thing is to ban software patents internationally altogether. There's no system set up to handle them in any kind of coherent way whatsoever, nor does any appear to be forthcoming. Too bad that's not going to happen.

So in other words. Samsung is doing Apple a favor and forcing their customers who have banned phones to change their phone. As they are banned Apple can wipe their hands clean of support. I don't see how this will help Samsung.

Well, Apple is going to have to pay for that patent eventually. Now that a court says Apple infringed, Samsung can go after the money.

You know, I've always sided with Samsung on these issues, and to a point I still do as far as wielding patents to lock competition out of the market.

I was visiting a friend this weekend and I commented on her iPhone and she said it was a Samsung. It blew my mind, literally blew my mind because it looked, at first glance, exactly like an iPhone 4. I'm a tech nerd, I (usually) don't make mistakes like that. I forgot what model it was.

On closer inspection I realized that it really wasn't an iPhone, but when I first saw it I was sitting right next to her and the phone was 2 to 3 feet from the my face.

Patent Roulette: Where you sue a company in as many ways as you can, and eventually one judge might agree to something. Thankfully, no matter what rulings there are anywhere else in the world or even the same country, that one judges ban or jury's verydict still pays for all!

The entire idea of a court system handling patents is archaic, they're not set up do so, in general have no knowledge of the subject, and seem to have no obligation to follow any other courts ruling. There's a thousand differing rulings, and none of them ever seem to have an impact on the other. Didn't get what you wanted in the US court system? Try again until you do! Might as well try to the get a ban from the ITC as well, either one works. Their rulings disagree? Doesn't matter one whit to you!

The only logical thing is to ban software patents internationally altogether. There's no system set up to handle them in any kind of coherent way whatsoever, nor does any appear to be forthcoming. Too bad that's not going to happen.

If the patent only applies to CDMA, then AT&T should still be able to sell the iPhone 4 as they run a GSM based network. So Verizon, Sprint, Cricket, and any of the other CDMA carriers would be affected by an import ban. That is unless this patent bleeds over in to GSM network standards & protocols. At this point in time, AT&T is just trying to clear out the rest of its inventory to make room for the 4S, 5, and what's coming out next. Soon the 4S will drop to $.99 and the 5 to $99.99 unless something drastic changes, like AT&T scrubbing their subsidies pricing scheme.

"CDMA" in this instance could well refer to all UMTS 3G radios instead of just the CDMA/CDMA2000 interface used by Verizon and Sprint in the U.S.

Unlike GSM, which was time-division multiplexed (TDMA), UMTS has been code-division multiplexed from the get-go; the current HSPA and HSPA+ schemes are usually referred to as wideband CDMA (W-CDMA).

As an aside, LTE is unaffected by any of this as it is based on a couple of frequency-division multiplexing (FDMA) schemes

That would make more sense as the AT&T GSM iPhone 4 supports UMTS HSPA but not HSPA+. The more I'm reading about it, the more FRAND this patent looks.

You know, I always sided with Samsung on theses issues, and to a point I still do as far as wielding patents to lock competition out of the market.

I was visiting a friend this weekend and I commented on her iPhone and she said it was a Samsung. It blew my mind, literally blew my mind because it looked, at first glance, exactly like an iPhone 4. I'm a tech nerd, I (usually) don't make mistakes like that. I forgot the model.

On closer inspection I realized that it really wasn't an iPhone, but when I first saw it I was sitting right next to her and the phone was 2 to 3 feet from the my face.

So in other words. Samsung is doing Apple a favor and forcing their customers who have banned phones to change their phone. As they are banned Apple can wipe their hands clean of support. I don't see how this will help Samsung.

I don't think so. My understanding is that this means those phones cant be SOLD, not that people who already have one aren't allowed to use it anymore. If they had the power to enact such a far-reaching ban as that, they would have an enormous public outcry to deal with - people suddenly having to shell out for new phones just because someone says they're not allowed to use their old one anymore.

So in other words. Samsung is doing Apple a favor and forcing their customers who have banned phones to change their phone. As they are banned Apple can wipe their hands clean of support. I don't see how this will help Samsung.

I don't think so. My understanding is that this means those phones cant be SOLD, not that people who already have one aren't allowed to use it anymore. If they had the power to enact such a far-reaching ban as that, they would have an enormous public outcry to deal with - people suddenly having to shell out for new phones just because someone says they're not allowed to use their old one anymore.

It's somewhat weaker than that again - it's an import ban (literally), not a total ban of the product. Apple is still free to sell any stock they already have in the US (or hypothetically any they manufactured locally).

You know, I've always sided with Samsung on these issues, and to a point I still do as far as wielding patents to lock competition out of the market.

I was visiting a friend this weekend and I commented on her iPhone and she said it was a Samsung. It blew my mind, literally blew my mind because it looked, at first glance, exactly like an iPhone 4. I'm a tech nerd, I (usually) don't make mistakes like that. I forgot what model it was.

On closer inspection I realized that it really wasn't an iPhone, but when I first saw it I was sitting right next to her and the phone was 2 to 3 feet from the my face.

I still don't really get how people mistake iPhone 4 with any of the Samsung phones unless it's really far away or wrapped in phone cover. iPhone 4 has distinctly metallic looking sides while Samsung phones are made of plastic. The face button is also square vs circle.

Interesting win in the never ending game of patents between these two. Mostly useless but no doubt it'll be something else they throw into the pile of appeals of that one major "loss" of a case.

Also I have a serious problem with the way FRAND patents get treated and talked about in a lot of these discussions but probably not the way most people do. The F does not mean "Free," it's Fair. You give a fair and reasonable price and you don't discriminate based on who gets it. As a result of that it's rather difficult to really have a case... if they're paying. I don't know the specifics here so perhaps this is meaningless, but I'm just being reminded of the Motorola/Apple case on FRAND patents a few months back where the issue was that Apple wasn't paying. Where a judge threw them out of court with prejudice because they straight up said that they would listen to the court but only if the fees were $1 per iPhone or less.

Whether you believe patents on these technologies should be held or how they're enforced matter is one thing, but I do think people need to stand back for a minute and question *why* certain essential patents would be argued. It carries a higher risk by watchdog agencies (especially within the EU) and is generally negative to do. If a company's attacking with that, it's probably because the basic FRAND terms were never met/made to begin with. While I'm all for a giant free for all where you can pick out a phone like you would a car or any other electronic device, that's just not the world we live in (yet).

I still don't really get how people mistake iPhone 4 with any of the Samsung phones unless it's really far away or wrapped in phone cover. iPhone 4 has distinctly metallic looking sides while Samsung phones are made of plastic. The face button is also square vs circle.

When was he last time you saw an iPhone that wasn't immediately covered in a case? I'm the only one I've ever seen doing that, except one dude at a bar last year that I complemented.